zant stephens argued february decided june bifurcated trial georgia state jury found respondent guilty murder imposed death penalty sentencing phase trial judge instructed jury authorized consider evidence received guilt phase trial well facts circumstances presented mitigation aggravation sentencing proceeding must find designate writing existence one specified statutory aggravating circumstances order impose death penalty jury stated writing found statutory aggravating circumstances respondent prior conviction capital felony substantial history serious assaultive criminal convictions murder committed escapee respondent appeal pending georgia held another case one aggravating circumstances substantial history serious assaultive criminal convictions unconstitutionally vague respondent case georgia held two aggravating circumstances adequately supported sentence federal district denied respondent petition habeas corpus appeals held respondent death penalty invalid response certified question zant stephens georgia explained premises view failure one aggravating circumstance invalidate death sentence otherwise adequately supported aggravating circumstances georgia law finding statutory aggravating circumstance serves limited purpose identifies members class persons convicted murder eligible death penalty without furnishing guidance jury exercise discretion determining whether death penalty imposed held limited function served jury finding statutory aggravating circumstance render georgia statutory scheme invalid holding furman georgia georgia scheme jury required find identify writing least one valid statutory aggravating circumstance individualized determination must made basis defendant character circumstances crime state reviews record every death penalty proceeding determine whether sentence arbitrary disproportionate narrowing function statutory aggravating circumstances properly achieved case two valid aggravating circumstances upheld georgia two findings adequately differentiate case objective evenhanded substantively rational way many georgia murder cases death penalty may imposed moreover georgia reviewed respondent death sentence determine whether arbitrary excessive disproportionate thus georgia capital sentencing statute invalid applied pp stromberg california require respondent death sentence vacated stromberg requires general guilty verdict set aside jury instructed rely two independent grounds one grounds insufficient verdict may rested exclusively insufficient ground case however jury merely return general verdict stating found least one aggravating circumstance instead expressly found two aggravating circumstances valid legally sufficient support death penalty second rule derived stromberg requiring general guilty verdict indictment information set aside rests constitutional unconstitutional ground applicable suggestion aggravating circumstances involved conduct protected constitution pp respondent death sentence impaired asserted ground jury instruction regard invalid statutory aggravating circumstance may unduly affected jury deliberations although aggravating circumstance struck georgia failed provide adequate basis distinguishing murder case death penalty may imposed cases penalty may imposed underlying evidence respondent history serious assaultive criminal convictions fully admissible georgia law sentencing phase trial pp stevens delivered opinion burger blackmun powell joined white filed opinion concurring part concurring judgment post rehnquist filed opinion concurring judgment post marshall filed dissenting opinion brennan joined post georgia response certified question supplemental briefs filed michael bowers attorney general georgia william hill senior assistant attorney general robert stubbs ii executive assistant attorney general marion gordon first assistant attorney general petitioner james bonner jack greenberg james nabrit iii joel berger john charles boger deborah fins anthony amsterdam respondent justice stevens delivered opinion question presented whether respondent death penalty must vacated one three statutory aggravating circumstances found jury subsequently held invalid georgia although two aggravating circumstances specifically upheld answer depends function jury finding aggravating circumstance georgia capital sentencing statute reasons aggravating circumstance issue particular case found invalid january jury bleckley county georgia convicted respondent murder roy asbell sentenced death evidence received guilt phase trial included confessions testimony number witnesses described events august respondent serving sentences several burglary convictions also awaiting trial escape escaped houston county jail next two days committed two auto thefts armed robbery several burglaries august roy asbell interrupted respondent accomplice course burglarizing home asbell son twiggs county respondent beat asbell robbed aid accomplice drove vehicle short distance bleckley county killed asbell shooting twice ear point blank range sentencing phase trial state relied evidence adduced guilt phase also established respondent prior criminal record included convictions two counts armed robbery five counts burglary one count murder respondent testified sorry knew deserved punished accomplice actually shot asbell pretty high drugs state requested jury impose death penalty argued evidence established aggravating circumstances identified subparagraphs georgia capital sentencing statute trial judge instructed jury law georgia every person found guilty murder shall punished death imprisonment life sentence fixed jury trying case app explained jury authorized consider evidence received trial well facts circumstances presented extenuation mitigation aggravation sentencing proceeding stated may consider following statutory aggravating circumstances find supported evidence one offense murder committed person prior record conviction capital felony offense murder committed person substantial history serious assaultive criminal convictions two offense murder outrageously wantonly vile horrible inhuman involved torture depravity mind aggravated battery victim three offense murder committed person escaped lawful custody peace officer place lawful confinement possible statutory circumstances stated writing deliberations sentencing phase case writing shall send jury verdict sentencing fixes punishment death electrocution shall designate writing signed foreman aggravating circumstances circumstance found proven beyond reasonable doubt unless one statutory aggravating circumstances proven beyond reasonable doubt authorized fix punishment death direct appeal georgia respondent challenge sufficiency evidence supporting aggravating circumstances found jury argue infirmity statutory definition circumstances appeal pending however georgia held arnold state aggravating circumstance described second clause substantial history serious assaultive criminal convictions unconstitutionally vague finding made jury case georgia motion considered whether impaired respondent death sentence concluded two aggravating circumstances adequately supported sentence stephens state cert denied state reaffirmed conclusion subsequent appeal denial state habeas corpus relief stephens hopper cert denied federal district denied petition habeas corpus appeals fifth circuit considered two constitutional challenges respondent death sentence first rejected contention jury adequately instructed permitted impose life imprisonment rather death penalty even found aggravating circumstance held however death penalty invalid one aggravating circumstances found jury later held unconstitutional appeals gave two reasons conclusion first read stromberg california requiring jury verdict based multiple grounds set aside reviewing ascertain whether jury relied unconstitutional ground concluded impossible reviewing determine satisfactorily verdict case decisively affected unconstitutional statutory aggravating circumstance jury authority return life sentence even found statutory aggravating circumstances possible even jurors believed aggravating circumstances established recommended death penalty decision offense committed one substantial history serious assaultive criminal convictions invalid ground petition rehearing state pointed evidence respondent prior convictions admissible sentencing hearing even relied invalid circumstance appeals modified opinion deleting reference possibility jury relied inadmissible evidence maintained however reference instructions invalid circumstance may unduly directed jury attention prior convictions ibid concluded determined degree certainty required capital cases instruction make critical difference jury decision impose death penalty ibid granted warden zant petition certiorari briefs merits revealed different state appellate courts reached varying conclusions concerning significance invalidation one multiple aggravating circumstances considered jury capital case although georgia consistently stated failure one aggravating circumstance invalidate death sentence otherwise adequately supported concluded exposition premises view assist framing precise federal constitutional issues presented appeals holding therefore sought guidance georgia pursuant georgia statutory certification procedure code supp zant stephens response certified question georgia first distinguished stromberg case jury might relied exclusively single invalid ground noting jury case expressly relied valid sufficient grounds verdict explained premises treatment aggravating circumstances analogizing entire body georgia law governing homicides pyramid explained cases homicide every category contained within pyramid consequences flowing perpetrator increase severity cases proceed base apex death penalty applying cases contained space beneath apex reach category case must pass three planes division base apex first plane division base separates homicide cases fall category murder plane established legislature statutes defining terms murder voluntary manslaughter involuntary manslaughter justifiable homicide deciding whether given case falls plane function trier facts limited finding facts plane remains fixed unless moved legislative act second plane separates murder cases penalty death possible punishment plane established statutory definitions aggravating circumstances function factfinder limited making determination whether certain facts established except treason aircraft hijacking given case may move second plane unless least one statutory aggravating circumstance exists code ann third plane separates cases penalty death may imposed cases shall imposed absolute discretion factfinder place given case plane impose death plane established factfinder establishing plane factfinder considers evidence extenuation mitigation aggravation punishment code ann final limitation imposition death penalty resting automatic appeal procedure determines whether penalty death imposed influence passion prejudice arbitrary factor whether statutory aggravating circumstances supported evidence whether sentence death excessive disproportionate penalty imposed similar cases code ann performance function may cause remove case death penalty category never opposite result purpose statutory aggravating circumstances limit large degree completely factfinder discretion unless least one ten statutory aggravating circumstances exists death penalty may imposed event exists least one statutory aggravating circumstance death penalty may imposed factfinder discretion decline without giving reason waters state hawes state fleming state making decision penalty factfinder takes consideration circumstances sentence phases trial circumstances relate offense defendant case may pass second plane area death penalty authorized unless least one statutory aggravating circumstance found however plane passed regardless number statutory aggravating circumstances found long least one beyond plane case enters area factfinder discretion facts circumstances case determine terms metaphor whether case passes third plane area death penalty imposed indebted georgia helpful response certified question response makes clear must confront three separate issues order decide case first limited purpose served finding statutory aggravating circumstance georgia allow jury measure discretion forbidden furman georgia subsequent cases second rule stromberg california violated third case even though respondent prior criminal record properly admitted possibility reference invalid statutory aggravating circumstance judge instruction affected jury deliberations require death sentence set aside discuss issues turn georgia unlike jury instructed give special weight aggravating circumstance consider multiple aggravating circumstances significant single circumstance balance aggravating mitigating circumstances pursuant special standard thus georgia finding aggravating circumstance play role guiding sentencing body exercise discretion apart function narrowing class persons convicted murder eligible death penalty reason respondent argues georgia statutory scheme invalid holding furman georgia fair statement consensus expressed furman discretion afforded sentencing body matter grave determination whether human life taken spared discretion must suitably directed limited minimize risk wholly arbitrary capricious action gregg georgia opinion stewart powell stevens thus summarizing central mandate furman joint opinion gregg set forth general exposition sentencing procedures satisfy concerns furman expressly stated intend suggest procedures permissible furman sentencing system constructed along general lines inevitably satisfy concerns furman distinct system must examined individual basis opinion turned specific consideration constitutionality georgia capital sentencing procedures georgia scheme includes two important features joint opinion described general discussion sentencing procedures guide channel exercise discretion georgia bifurcated procedure see statute also mandates meaningful appellate review every death sentence see statute however follow model penal code recommendation jury discretion weighing aggravating mitigating circumstances governed specific standards see instead georgia unambiguously advised us aggravating circumstance merely performs function narrowing category persons convicted murder eligible death penalty respondent argues mandate furman violated scheme permits jury exercise unbridled discretion determining whether death penalty imposed found defendant member class made eligible penalty statute argument accepted without overruling specific holding gregg approved georgia capital sentencing statute even though clearly channel jury discretion enunciating specific standards guide jury consideration aggravating mitigating circumstances approval georgia capital sentencing procedure rested primarily two features scheme jury required find least one valid statutory aggravating circumstance identify writing state reviewed record every death penalty proceeding determine whether sentence arbitrary disproportionate elements opinion concluded adequately protected wanton freakish imposition death penalty conclusion rested course fundamental requirement statutory aggravating circumstance must satisfy constitutional standard derived principles furman system standards vague fail adequately channel sentencing decision patterns juries result pattern arbitrary capricious sentencing like found unconstitutional furman occur avoid constitutional flaw aggravating circumstance must genuinely narrow class persons eligible death penalty must reasonably justify imposition severe sentence defendant compared others found guilty murder thus godfrey georgia struck aggravating circumstance failed narrow class persons eligible death penalty justice stewart opinion plurality concluded aggravating circumstance described subsection georgia statute construed georgia failed create inherent restraint arbitrary capricious infliction death sentence person ordinary sensibility find almost every murder fit stated criteria moreover facts case distinguish murder murder plurality concluded principled way distinguish case death penalty imposed many cases indicate statutory aggravating circumstances play constitutionally necessary function stage legislative definition circumscribe class persons eligible death penalty constitution require jury ignore possible aggravating factors process selecting among class defendants actually sentenced death important selection stage individualized determination basis character individual circumstances crime see eddings oklahoma lockett ohio plurality opinion roberts harry louisiana gregg opinion stewart powell stevens jj proffitt florida opinion stewart powell stevens jj woodson north carolina plurality opinion georgia scheme provides categorical narrowing definition stage individualized determination appellate review selection stage therefore remain convinced structure statute constitutional moreover narrowing function properly achieved case two valid aggravating circumstances upheld georgia respondent escaped lawful confinement prior record conviction capital felony two findings adequately differentiate case objective evenhanded substantively rational way many georgia murder cases death penalty may imposed moreover georgia case reviewed death sentence determine whether arbitrary excessive disproportionate thus absence legislative standards govern jury weighing significance either aggravating circumstances render georgia capital sentencing statute invalid applied case ii respondent contends rule stromberg california subsequent cases invalidity one statutory aggravating circumstances underlying jury sentencing verdict requires entire death sentence set aside order evaluate contention necessary identify two related different rules source stromberg case stromberg member communist party convicted displaying red flag violation california penal code california statute prohibited display sign symbol emblem opposition organized government invitation stimulus anarchistic action aid seditious propaganda held first clause statute repugnant federal constitution found unnecessary pass validity two clauses jury guilty verdict might rested exclusively conclusion stromberg violated first explained verdict appellant general one specify ground upon rested three purposes set forth statute jury instructed verdict might given respect one independently considered impossible say clause statute conviction obtained one clauses state held separable invalid determined upon record appellant convicted clause first clause statute invalid upon face conviction appellant far record discloses may rested upon clause exclusively must set aside second rule derived stromberg case illustrated thomas collins street new york cases made clear reasoning stromberg encompasses situation general verdict indictment information rested constitutional unconstitutional ground thomas collins labor organizer contempt citation predicated upon speech expressing general invitation group nonunion workers held constitutionally protected speech upon solicitation single individual declined consider state contention judgment sustained basis individual solicitation alone record showed penalty imposed account solicitations judgment therefore must affirmed neither similarly street record indicated petitioner conviction indictment based protected words well arguably unprotected conduct flag burning stated unless record negates possibility conviction based alleged violations judgment affirmed unless valid opinion street explained take rationale thomas indictment information charges commission crime virtue defendant done constitutionally protected act one may unprotected guilty verdict ensues without elucidation unacceptable danger trier fact regarded two acts rested conviction together see comparable hazard indictment information several counts conviction explicitly declared rest findings guilt certain counts instances positive evidence trier fact considered count merits separately others ibid omitted stromberg thomas street trial courts judgments rested part fact defendant found guilty expressive activity protected first amendment contrast case suggestion aggravating circumstances involved conduct protected first amendment provision constitution accordingly even stromberg rules may sometimes apply sentencing context death sentence supported least one valid aggravating circumstance need set aside second stromberg rule simply another aggravating circumstance invalid sense insufficient support death penalty case jury finding respondent person substantial history serious assaultive criminal convictions provide sufficient basis imposing death sentence raised none concerns underlying holdings stromberg thomas street treat constitutionally protected conduct aggravating circumstance iii two themes reiterated opinions discussing procedures required constitution capital sentencing determinations one hand general comments gregg joint opinion indicated chief justice explicitly noted lockett ohio plurality opinion perfect procedure deciding cases governmental authority used impose death see also beck alabama hand qualitative difference death permissible form punishment corresponding difference need reliability determination death appropriate punishment specific case woodson north carolina vital importance defendant community decision impose death sentence appear based reason rather caprice emotion gardner florida thus although every imperfection deliberative process sufficient even capital case set aside judgment severity sentence mandates careful scrutiny review colorable claim error respondent contends death sentence impaired judge instructed jury regard invalid statutory aggravating circumstance substantial history serious assaultive criminal convictions instructions may affected jury deliberations analyzing contention essential keep mind sense aggravating circumstance invalid invalid authorizes jury draw adverse inferences conduct constitutionally protected georgia example sought characterize display red flag cf stromberg california expression unpopular political views cf terminiello chicago request trial jury cf jackson aggravating circumstance georgia attached aggravating label factors constitutionally impermissible totally irrelevant sentencing process example race religion political affiliation defendant cf herndon lowry conduct actually militate favor lesser penalty perhaps defendant mental illness cf miller florida aggravating circumstance issue case invalid reasons due process law require jury decision impose death set aside invalid aggravating circumstance found jury case struck arnold georgia concluded fails provide adequate basis distinguishing murder case death penalty may imposed cases penalty may imposed see nn supra underlying evidence nevertheless fully admissible sentencing phase noted gregg georgia statute provides sentencing hearing judge jury shall hear additional evidence extenuation mitigation aggravation punishment including record prior criminal convictions pleas guilty pleas nolo contendere defendant absence prior conviction pleas provided however evidence aggravation state made known defendant prior trial shall admissible code emphasis supplied think georgia wisely chosen impose unnecessary restrictions evidence offered hearing approve open argument long evidence introduced arguments made presentence hearing prejudice defendant preferable impose restrictions think desirable jury much information possible makes sentencing decision thus evidence jury might relied case find respondent previously convicted substantial number serious assaultive offenses concedes properly adduced sentencing hearing fully subject explanation defendant cf gardner florida supra requiring defendant opportunity rebut evidence state theory sentencing proceeding presnell georgia case involves statutory aggravating circumstance invalidated state grounds vagueness whose terms plausibly described aspects defendant background properly jury whose accuracy unchallenged hence erroneous instruction implicate repeated recognition qualitative difference death penalties calls greater degree reliability death sentence imposed lockett ohio opinion burger although appeals acknowledged rehearing evidence admissible expressed concern trial instructions may unduly directed jury attention prior conviction assuming instruction induce jury place greater emphasis upon respondent prior criminal record otherwise done question remains whether emphasis violated constitutional right answering question appropriate compare instruction actually given see supra instruction subject unobjectionable cf henderson kibbe nothing constitution prohibits trial judge instructing jury appropriate take account defendant prior criminal record making sentencing determination see supra even though defendant prior history noncapital convictions provide sufficient justification imposing death sentence constitutional infirmity instruction stating substance find beyond reasonable doubt defendant person previously convicted capital felony escaped lawful confinement authorized impose death sentence deciding whether sentence appropriate may consider remainder prior criminal record effect erroneous instruction may jury therefore merely consequence statutory label aggravating circumstance label arguably might caused jury give somewhat greater weight respondent prior criminal record otherwise given think georgia erred conclusion mere fact aggravating circumstances presented improperly designated statutory inconsequential impact jury decision regarding death penalty instructions see supra place particular emphasis role statutory aggravating circumstances jury ultimate decision instead trial instructed jury consider evidence received throughout trial consider facts circumstances presented extinuation sic mitigation aggravation punishment well arguments presented state defense app importantly reasons discussed possible impact fairly regarded constitutional defect sentencing process decision case depends part existence important procedural safeguard mandatory appellate review death sentence georgia avoid arbitrariness assure proportionality accept view subsequent invalidation one several statutory aggravating circumstances automatically require reversal death penalty assured death sentence set aside invalidation aggravating circumstance makes penalty arbitrary capricious georgia response certified question expressly stated different result might reached case evidence submitted support statutory aggravating circumstance otherwise admissible thereafter circumstance failed ibid noted gregg also assured death sentence vacated excessive substantially disproportionate penalties imposed similar circumstances finally note deciding case express opinion concerning possible significance holding particular aggravating circumstance invalid statutory scheme judge jury specifically instructed weigh statutory aggravating mitigating circumstances exercising discretion whether impose death penalty see supra discussed see supra constitution require state adopt specific standards instructing jury consideration aggravating mitigating circumstances georgia adopted system georgia sentencing scheme trial judge instructions case suggestion made presence one aggravating circumstance given special weight whether jury concluded respondent prior record criminal convictions merited label substantial label assaultive jury plainly entitled consider record together evidence making sentencing determination judgment appeals reversed footnotes cases offenses death penalty may authorized judge shall consider shall include instructions jury consider mitigating circumstances aggravating circumstances otherwise authorized law following statutory aggravating circumstances may supported evidence offense murder rape armed robbery kidnapping committed person prior record conviction capital felony offense murder committed person substantial history serious assaultive criminal convictions offense murder rape armed robbery kidnapping outrageously wantonly vile horrible inhuman involved torture depravity mind aggravated battery victim offense murder committed person escaped lawful custody peace officer place lawful confinement instruction sentencing jury app quoted full opinion zant stephens jury made following special findings offense murder committed person prior record conviction capital felony offense murder committed person substantial history serious assaultive criminal convictions offense murder committed person escaped lawful custody peace officer place lawful confinement app thus case implicate holding godfrey georgia aggravating circumstance construed georgia unconstitutionally broad vague defendant arnold sentenced death jury found aggravating circumstance appeal contended language clause provide sufficiently clear objective standards necessary control jury discretion imposing death penalty coley state furman georgia georgia agreed statutory language vague nonspecific applied evenhandedly jury state habeas petition respondent unsuccessfully challenged aggravating circumstance prior conviction capital felony admittedly conviction time trial case time murder georgia interpreted statute code referring defendant record time sentencing accordingly respondent contention rejected respondent renewed challenge aggravating circumstance federal habeas petition appeals correctly recognized authority question georgia interpretation state law contention renewed aspect appeals decision us code see infra brief respondent brief state alabama et al amici curiae cf gregg georgia noting cases georgia explicitly relied one several aggravating circumstances upheld death sentence certified following question premises state law support conclusion death sentence case impaired invalidity one statutory aggravating circumstances found jury see williams state ark state irwin state moore hopkinson state wyo cases state set aside death sentence based valid invalid aggravating circumstances respondent advances cases support contention similar result required however examination relevant state statutes shows must jury find least one aggravating circumstance order power impose death sentence addition law requires jury weigh aggravating circumstances mitigating circumstances decides whether death penalty imposed see ark stat ann stat code ann wyo stat joint opinion specifically described georgia scheme terms georgia act however narrow class murderers subject capital punishment specifying statutory aggravating circumstances one must found jury exist beyond reasonable doubt death sentence ever imposed addition jury authorized consider appropriate aggravating mitigating circumstances supp jury required find mitigating circumstance order make recommendation mercy binding trial see supp must find statutory aggravating circumstance recommending sentence death see also cf opinion white concurring judgment jury permitted consider aggravating mitigating circumstances must find identify least one statutory aggravating factor may impose penalty death way jury discretion channeled longer jury wantonly freakishly impose death sentence always circumscribed legislative guidelines addition review function georgia affords additional assurance concerns prompted decision furman present significant degree georgia procedure applied standards statutory aggravating circumstances address concerns voiced several opinions furman georgia see douglas concurring brennan concurring highly implausible worst criminals criminals commit worst crimes selected punishment stewart concurring people convicted rapes murders many reprehensible petitioners among capriciously selected random handful upon sentence death fact imposed white concurring meaningful basis distinguishing cases imposed many cases gregg joint opinion recognized need legislative criteria limit death penalty certain crimes decision capital punishment may appropriate sanction extreme cases expression community belief certain crimes grievous affront humanity adequate response may penalty death opinion also noted approval efforts legislatures define crimes criminals capital punishment probably effective deterrent opinion justice white concurring judgment gregg asserted time aggravating circumstance requirement applied types murders death penalty may imposed become narrowly defined limited particularly serious death penalty peculiarly appropriate cf roberts harry louisiana state may consider aggravating circumstance fact murder victim peace officer performing regular duties special interest affording protection public servants regularly must risk lives order guard safety persons property conclusion godfrey analogous georgia holding arnold state second clause aggravating circumstance issue case vague nonspecific applied evenhandedly jury defendant case two prior convictions sentenced death jury solely finding substantial history serious assaultive criminal convictions concluded words substantial history highly subjective unconstitutional see supra aggravating circumstance view georgia provide principled basis distinguishing arnold case many murder cases death penalty imposed statute see gregg proffitt florida opinion stewart powell stevens similarly model penal code draft discussed gregg supra sets forth lists aggravating mitigating circumstances also provides sentencer shall take account facts deems relevant ali model penal code prop draft state course free decide matter state law limit evidence aggravating factors prosecution may offer sentencing hearing number permit sentencer consider aggravating circumstances enumerated statute see gillers deciding dies rev see ark stat ann cons stat see gillers supra georgia conducts independent review propriety sentence even defendant specifically raised objections trial see stephens state cert denied case georgia explained performing sentence comparison required code ann uses comparison purposes similar cases death imposed similar cases death imposed state neither conceded unequivocally denied sentence imposed account acts nevertheless state maintains invitation sufficient sustain judgment sentence nothing need considered support situation held single sentence may stand even one counts invalid long one counts valid sentence within range authorized law see claassen pinkerton barenblatt see fair state lawful evidence tends show motive defendant lack remorse general moral character predisposition commit crimes admissible aggravation subject notice provisions statute purpose code ann allow defendant examine record determine convictions fact represented counsel defect render documents inadmissible phase trial herring state see franklin state held tucker even noncapital sentencing proceeding sentence must set aside trial relied least part misinformation constitutional magnitude prior uncounseled convictions unconstitutionally imposed see townsend burke reversing sentence imposed uncounseled defendant based extensively materially false assumptions concerning defendant prior criminal record petitioner acknowledges invalid statutory aggravating circumstance supported material evidence properly jury different case presented brief petitioner supplemental memorandum petitioner tr oral arg need decide case whether death sentence impaired circumstances example jury finding aggravating circumstance relied materially inaccurate misleading information georgia affirmance case direct appeal implicitly approves jury instructions accurate reflection state law moreover instructions entirely consistent explanation georgia statutory scheme given georgia response certified question according response see supra nless least one ten statutory aggravating circumstances exists death penalty may imposed event exists least one statutory aggravating circumstance death penalty may imposed factfinder discretion decline without giving reason making decision penalty factfinder takes consideration circumstances sentence phases trial precisely trial told jury arriving determinations regard authorized consider evidence received throughout trial authorized consider facts circumstances presented extinuation sic mitigation aggravation punishment well arguments presented state defense unless one statutory aggravating circumstances proven beyond reasonable doubt authorized fix punishment death fix punishment death electrocution recite exact words given one circumstances found proven beyond reasonable doubt recommend life imprisonment necessary recite mitigating aggravating circumstances may find simply state verdict fix punishment life prison app see zant stephens see supra justice white concurring part concurring judgment claassen defendant criminal case found guilty counts jury instructed verdict general one one sentence imposed writ error affirmed conviction sentence saying first count verdict guilty returned upon sufficient support judgment sentence question sufficiency counts need considered similarly barenblatt defendant convicted five counts general sentence imposed said since sentence less maximum punishment authorized statute conviction one count judgment must upheld conviction upon counts sustainable omitted pinkerton whitfield ohio abrams evans similar holdings therefore clear cases claassen barenblatt stromberg thomas street problem jury imposing sentence found three aggravating circumstances based evidence imposed death sentence one aggravating circumstance found invalid intervening appeal another case claim stromberg thomas street death sentence must set aside agree problem since evidence supporting invalid aggravating circumstances properly jury however suggests evidence inadmissible federal constitution might stromberg thomas street problem says ante jury imposition death sentence finding one aggravating circumstance also precisely imposition single sentence imprisonment guilty verdicts several separate counts indictment qualitatively different sentence death imposed channeled sentencing procedure omitted thus suggests line cases may applicable sentencing proceedings capital punishment cases fail grasp distinction however cases sentencing procedures involved claassen barenblatt one sentence several counts one surer sentence rest one counts cases however sustain sentence authorized valid counts stromberg thomas street invalidate single sentence case thus may view problem invalid count rested constitutionally inadmissible evidence since jury instructed take account evidence remain question whether inadmissible evidence invalidates sentence perhaps least room application rule case seems per se rule stromberg street thomas except foregoing join opinion judgment well justice rehnquist concurring judgment agreeing judgment write separately make clear understanding application eighth fourteenth amendments capital sentencing procedures used case agree treatment factual procedural background case characterization question presented review brief must decide whether procedure georgia imposed death sentence comports eight fourteenth amendments whether case imposition death sentence violates rule stromberg california whether erroneous presentation jury invalid aggravating circumstance requires vacating death sentence imposed jury georgia death sentencing procedure comprehensively detailed statutes state decisions georgia courts opinion issued georgia response questioned certified zant stephens jury instructions case materials reveal two separate proceedings necessary imposition death sentence georgia first stage simply traditional criminal trial question guilt innocence defendant found guilty capital offense separate sentencing proceedings conducted second proceeding state defendant permitted introduce wide range evidence extenuation mitigation aggravation punishment code sentencing body directed make two separate decisions first decides whether number specific statutorily defined aggravating circumstances proved beyond reasonably doubt code addition jury instructed finds one statutory aggravating circumstances make judgment whether defendant deserves death sentence making second decision statutory aggravating circumstances found sentence considered together evidence mitigation aggravation sentencer however instructed formally weigh aggravating circumstances mitigating circumstances death sentence imposed case receives conventional appellate consideration expedited direct review georgia respondent challenges georgia death sentencing system violative eight amendment grounds fails adequately channel discretion sentencing body particular respondent urges absence instruction sentence must balance statutory aggravating circumstances mitigating circumstances imposing death sentence render scheme unconstitutional reasoning furman georgia respondent claim opinion completely foreclosed precedents except minor detail georgia current system identical sentencing procedure held constitutional gregg georgia opinion stewart powell stevens jj white concurring judgment joint opinion gregg fully recognized georgia scheme direct sentencing body statutory aggravating mitigating circumstances weighed formal sense evident careful description georgia scheme treatment model penal code proposed system fact sentencing body formally instructed weigh aggravating mitigating circumstances specifically noted notwithstanding lack explicit balancing directive joint opinion upheld statutory scheme since taken whole provided sentencing authority sufficient guidance prevent freakish imposition death barred furman likewise justice white concurrence role aggravating circumstances squarely discussed approved accept respondent contention sentencing body must specifically instructed balance statutory aggravating circumstances mitigating circumstances require rejecting judgment gregg georgia statute provided sentencing body adequate guidance permit impose death ii respondent next contends stromberg california requires death sentence set aside respondent argument rests fact one three aggravating circumstances specified jury case later found invalid decision holding statutory definition circumstance impermissibly vague constitution arnold state respondent reasons stromberg establishes rule requiring general verdict returned factfinder set aside based even part upon invalid factor supplemental brief respondent according respondent one aggravating circumstances found jury invalid general verdict death returned jury fails stromberg test careful examination stromberg cases following decision role aggravating circumstances jury imposition death penalty compels rejection respondent claim stromberg presented straightforward case defendant convicted violating california statute prohibiting display red flag three separate purposes trial jury instructed defendant convicted acted one proscribed purposes returned general verdict guilty without indicating purpose believed motivated defendant concluded first clauses statute detailing impermissible purposes unconstitutional held unnecessary decide validity remaining two clauses observed prosecutor emphatically urged upon jury convict appellant first clause alone without regard clauses concludes impossible say clause statute conviction obtained given complete uncertainty conviction stand see also williams north carolina cramer terminiello chicago yates untied course jury indicate statutory elements supported verdict valid stromberg inapplicable points stromberg doctrine subsequently extended albeit without lengthy analysis street new york vacated conviction based indictment casting contempt flag statute petitioner convicted criminalized casting contempt upon flag words act information filed petitioner alleged violated statute burned flag shouted derogatory statement likewise state introduced evidence bench trial petitioners act speech concluded petitioners constitutional rights violated punished speech thought moreover trial judge might rested finding solely petitioners speech presented situation similar stromberg addition however believed record case unacceptable danger trier fact regarded two acts intertwined rested conviction together short element crime defined included constitutionally projected actions alleges argues offer proof defendant protected conduct satisfied element general verdict guilty must set aside even state also alleged proved another course conduct satisfied element stromberg however also noted record indicates jury verdict rest intertwined combination protected unprotected conduct instead rested sufficiently unprotected conduct verdict stand neither stromberg line case street provides respondent appreciable support agree stromberg rule plainly distinguished since jury explicated returned two concededly valid aggravation circumstances thereby conclusively negating inference rested solely invalid circumstances likewise conclude analysis street inapposite helpful explaining case discuss separately two decision made sentencing body georgia death penalty proceedings initially consider applicability street jury first decision finding statutory aggravating circumstances indicated street explicitly stated rule regarding treatment aggravating circumstance inapplicable indictment information several counts conviction explicitly declared rest finding guilt certain counts instances positive evidence trier fact considered count merits separately others omitted exception street rule extends jury determination case certain specified aggravating circumstances existed jury received separate instructions several aggravating circumstances returned verdict separately listing three circumstances fact one subsequently proved invalid affect validity remaining two jury findings reversal appeal one several convictions returned separate counts affect remaining convictions positive evidence stephens jury considered aggravating circumstance merits separately others ibid street provides basis questioning jury first decision supported permitted go consider whether stephens deserved death sentence street logic even less applicable georgia death jury second decision namely defendant deserved death sentence respondent theory jury verdict death based part aggravating circumstances later proved invalid according respondent must thus fall rule street whatever proper application elsewhere street rule fairly extended sentencing context discussed significant difference role aggravating circumstances jury decision imposed death sentence role played instructions allegations jury determination guilt preclude applying street sentencing context rule relied upon respondent developed situation factfinder returns verdict guilty specific criminal charge returning verdict jury decides whether defendant committed specific set defined acts particular mental state elements necessary verdict guilty specifically carefully enumerated defined indictment information instructions jury evidence relevant particular elements alleged state admissible even subject exclusion prejudicial evidence might distract jury specific factfinding task performs based evidence jury decides whether elements constituting offense proved beyond reasonable doubt observation williams new york accurately captures character procedure leading criminal conviction trial verdict issue whether defendant guilty engaged certain criminal conduct specifically accused rules evidence fashioned criminal trials narrowly confin ing trial contest decision georgia death jury final stage deliberations impose death significantly different decision model described wide range evidence admissible literally countless subjects long recognized determination sentence justice generally requires taken account circumstances offense together character propensities offender gregg emphasis added considering evidence jury attempt decide whether particular elements proved instead makes unique individualized judgment regarding punishment particular person deserves see lockett ohio role aggravating circumstances making judgment substantially limited role played jury instructions allegations indictment ordinary trial georgia aggravating circumstances serve principally restrict class defendants subject death sentence single aggravating circumstances specified jury considers evidence deciding whether impose death penalty see part supra aggravating circumstance latter stage simply one countless considerations weighed jury seeking judge punishment appropriate individual defendant aggravating circumstance revealed invalid probable effect fact alone jury second decision whether death sentence appropriate minimal one theories guilt presented jury trial judge instructions indictment proves invalid substantial risk jury may based verdict improper theory follows necessarily limited number theories presented jury fact jury decisionmaking carefully routed along paths specifically set instructions aggravating circumstance proves invalid however effect ordinarily diminish probative value one literally countless factors jury considered inference diminution alter result reached jury nonexistent given rule developed street simply applied sensibly sentencing decisions resulting proceedings involving aggravating circumstances instead developed following part difference analysis applied question whether set aside sentencing decisions based part upon invalid factors iii respondent contends next even street inapplicable erroneous submission jury instruction bound regard unconstitutionally vague see supra must sufficient effect jury deliberations require vacating verdict although prior decisions completely consistent regarding effect constitutional error sentencing proceedings sentence imposed defendant general sentencing decisions accorded far greater finality convictions ordinarily sentence within statutory limits beyond appellate review gore street cited approval several long line sentencing decisions claassen pinkerton barenblatt defendants convicted several separate counts received general sentence linked one combination counts defendants challenged conviction writ error appeal following rule stated barenblatt since sentence less maximum punishment authorized statute conviction one count judgment must upheld conviction upon counts sustainable omitted claassen said settled law country generally criminal case general verdict judgment indictment information containing several counts reversed error one counts good warrants judgment absence anything record show contrary presumption law awarded sentence good count practical basis rules articulated gore claassen line cases clear indicated sentencing decisions rest inquiry countless facts circumstances type proof particular elements returning conviction fact one countless considerations sentencer taken account erroneous misleading otherwise improperly ordinarily assumed necessary basis decision nonetheless limited cases non capital sentencing decisions vacated resentencing tucker two uncounseled therefore unconstitutionally obtained convictions introduced defendant sentencing proceeding observed sentencing judge gave explicit specific attention convictions moreover noted defendant appeared dramatically different light true character unconstitutional convictions known judge dealing man unconstitutionally imprisoned beginning age years including years chain gang finally reemphasized unconstitutional character respondent prior convictions opined permit sentence stand erode rule gideon wainwright given respondent sentence held improper case remanded resentencing similarly townsend burke uncounseled defendant sentenced following proceeding trial judge explicitly repeatedly relied upon incorrect assumption defendant convicted several crimes observed duration severity sentence renders constitutionally invalid careless designed pronouncement sentence foundation extensively materially false prisoner opportunity correct services counsel provide renders proceedings lacking due process approach taken tucker townsend claassen line cases begins presumption since sentencer judgment rested countless variables error made one portion sentencing proceeding ordinarily affect sentence presumption plainly revealed claassen line cases sentence stand even turns crimes defendant sentenced committed nonetheless defendant may adduce evidence sentencing body likely acted differently error occurred order prevail claim however required convincing showing introduction specific constitutionally infirm evidence ascertainable dramatic impact sentencing authority see tucker supra townsend burke supra course careful application standard appropriate capital cases present case however erroneous submission jury invalid aggravating circumstance simply satisfy whatever standard may plausibly based cases discussed points real impact resulting error evidence properly jury capable fit within category judge instructions labeled aggravating evidence question respondent prior convictions plainly aggravating factor held gregg jury free consider fact instruction gave added weight doubt played role deliberations jurors yet georgia plainly right saying mere fact aggravating circumstances presented improperly designated statutory inconsequential impact jury decision regarding death penalty plurality recognized lockett ohio perfect procedure deciding cases governmental authority used impose death whatever defendant must show set aside death sentence present case involved remote possibility error effect jury judgment eighth amendment therefore require defendant sentence vacated jurek texas approved death penalty statute providing even less explicitly type weighing respondent claims necessary texas persons convicted five types homicide faced second proceeding jury required answer three question whether defendant acts committed deliberately reasonable expectation result death whether probability defendant commit violent acts constituting continuing threat society whether defendant acts response sort provocation joint opinion recognized sole function aggravating circumstances texas system narro categories murders death sentence may ever imposed since aggravating circumstance considered guilt determination phase trial sentencing system contain requirement jury balance circumstances mitigating circumstances respondent contends constitutionally required case assume purpose decision arnold correctly decided properly applied respondent case express view correctness decision application points street properly confirmed situations substantial risk jury imposed criminal punishment activity protected constitution respondent history violent conduct invalid aggravating circumstance based plainly falls outside category street therefore inapplicable case justice marshall justice brennan joins dissenting even accepted prevailing view death penalty may constitutionally imposed certain circumstances scarcely join upholding death sentence based part upon statutory aggravating circumstance vague application turns solely whim jury arnold state submission unconstitutional statutory aggravating circumstance jury deemed harmless error theory georgia finding aggravating circumstance play role guiding sentencing body exercise discretion apart function narrowing class persons convicted murder eligible death penalty ante emphasis added trial judge instructions apprised jury theory might proper assume unconstitutional statutory factor affect jury verdict instructions suffered even fundamental constitutional defect failure provide standards whatsoever guide jury actual sentencing decision decisions concerning death penalty establish anything capital sentencing scheme based standardless jury discretion violates eighth fourteenth amendments gregg georgia opinion stewart powell stevens citing furman georgia event jury sentenced respondent death never informed threshold theory invented first time georgia seven years later instruction actually given juror might reasonably concluded construing essentially identical instructions aggravating circumstances including statutory aggravating circumstances balanced mitigating circumstances determination defendant sentence way knowing whether jury sentenced respondent death attention drawn unconstitutional statutory factor continue adhere view death penalty circumstances cruel unusual punishment forbidden eighth fourteenth amendments see gregg georgia supra marshall dissenting furman georgia supra marshall concurring ii today upholds death sentence based part statutory aggravating circumstance state concedes amorphous invited subjective without minimal objective guidelines application arnold state supra order reach surprising result embraces theory infers georgia response certified question function statutory aggravating circumstances georgia screen threshold defendants none circumstances applies according theory statutory factors found drop picture entirely play part jury decision whether sentence defendant death relying threshold theory concludes submission unconstitutional statutory factor prejudice respondent jury instructions given eight years ago consistent new theory assume jury focus vague statutory aggravating circumstance making actual sentencing decision jury instructed instructions constitutionally defective basic reason since left jury totally without guidance found single statutory aggravating circumstance decision furman georgia capital sentencing procedures delegated judges juries plenary authority decide death sentence imposed sentencer given practically untrammeled discretion let accused live insist die furman georgia supra douglas concurring omitted furman held system capital punishment existence country incompatible eighth fourteenth amendments later recognized gregg georgia furman established one basic proposition established nothing else ultimate punishment death issue system standardless jury discretion violates eighth fourteenth amendments opinion stewart powell stevens basic teaching furman state may leave decision whether defendant lives dies unfettered discretion jury since scheme pregnant discrimination douglas concurring inevitably results death sentences wantonly freakishly imposed stewart concurring meaningful basis distinguishing cases death penalty imposed many cases white concurring see gregg georgia noting furman ruled death sentences imposed statutes left juries untrammeled discretion impose withhold death penalty violated eighth fourteenth amendments four years furman decided upheld capital sentencing statutes georgia florida texas constitutional attack concluding statutes contained safeguards promised eliminate constitutional deficiencies found furman see gregg georgia proffitt florida jurek texas conclusion based premise statutes ensured sentencers given guidance regarding factors crime defendant state representing organized society deems particularly relevant sentencing decision gregg georgia opinion stewart powell stevens assumed identification specific statutory aggravating circumstances put end standardless sentencing discretion procedures require jury consider circumstances crime criminal recommends sentence longer georgia jury furman jury reach finding defendant guilt without guidance direction decide whether live die instead jury attention directed specific circumstances crime committed course another capital felony committed money committed upon peace officer judicial officer committed particularly heinous way manner endangered lives many persons addition jury attention focused characteristics person committed crime record prior convictions capital offenses special facts defendant mitigate imposing capital punishment result jury discretion still exists discretion exercised controlled clear objective standards produce application opinion stewart powell stevens jj emphasis added citation omitted today learn first time mean said gregg georgia learn actual decision whether defendant lives dies may still left unfettered discretion jury although assured gregg sentencing discretion exercised clear objective standards opinion stewart powell stevens jj told state need nothing whatsoever guide jury ultimate decision whether sentence defendant death spare life today decision state require jury make threshold finding finding made jurors left completely large nothing guide whims prejudices need even consider statutory aggravating circumstances found applicable sentencing decision product discretion nothing else scheme based standardless jury discretion gregg georgia opinion stewart powell stevens jj know today decision makes absolute mockery precedents concerning capital sentencing procedures point requiring state legislatures identify specific aggravating circumstances sentencers left free ignore deciding defendants die gregg georgia stands may well permitted reenact statutes books furman system discretionary sentencing approves today differs form capital sentencing procedures held unconstitutional decade ago difference georgia capital sentencing scheme threshold theory embraces today unchecked discretion previously conferred cases murder conferred cases murder one statutory aggravating circumstances merely circumscribing category cases eligible death penalty remove constitutional scrutiny procedure actually sentenced death selected decade ago struck ohio statute permitted death sentence jury found victim murder police officer gave jury unbridled discretion aggravating factor found duling ohio summarily ohio see ohio rev code ann difference consequence ohio scheme held impermissible duling threshold scheme endorses today duling establishes constitution prohibits state defining crime murder police officer leaving decision whether impose death sentence unchecked discretion jury must also prohibit state defining lesser crime murder permitting jury make standardless sentencing decision found single aggravating factor victim police officer cases ultimate decision whether defendant killed left discretion sentencer unguided legislative standards whether particular preliminary finding made guilt phase trial sentencing phase irrelevant requirement finding made sentencing phase way channels sentencer discretion finding made constitution forbids one form standardless discretion must forbid well iii event jury sentenced respondent death never apprised threshold theory relied upon basis assumption ante jury attribute special significance statutory aggravating circumstances weigh along evidence aggravation evidence offered respondent mitigation first place everything judge charge highlighted importance aggravating circumstances circumstances submitted jury writing also jury turn required write every aggravating circumstance found established beyond reasonable doubt jury instructions provide absolutely indication carefully considering statutory aggravating circumstances submitted trial judge jury even discard list officially sanctioned grounds imposing death penalty deciding whether actually sentence respondent death zant stephens marshall dissenting second assertion georgia finding aggravating circumstance play role guiding sentencing body exercise discretion ante flatly inconsistent previous characterizations function statutory aggravating circumstances georgia scheme gregg georgia jury instructions essentially identical given joint opinion justices stewart powell stevens took great pains point statutory aggravating circumstances served apprise sentencer information relevant imposition sentence provid standards guide use information slightest hint statutory factors relevant threshold determination whether defendant eligible receive death penalty contrary joint opinion emphasized informed sentencer factors state deems particularly relevant sentencing decision emphasis added thought statutory aggravating circumstances play threshold role sentencing process made sense say jury verdict identifying one circumstances served apprise appellate courts factors relied upon reaching decision emphasis added premise threshold theory adopted today statutory aggravating circumstances relied upon jury reaching ultimate sentencing decision considered deciding whether defendant eligible receive death penalty assumption respondent jury balance aggravating circumstances mitigating circumstances also inconsistent characterization almost identical instructions given coker georgia plurality opinion see app coker georgia pp coker case jury expressly instructed weigh aggravating mitigating circumstances plurality opinion sensibly recognized weighing inherent determination whether mitigating circumstances warrant life sentence notwithstanding existence aggravating circumstances jury instructed consider aggravating circumstances whether rape committed person prior record conviction capital felony whether rape committed course committing another capital felony namely armed robbery allen carver also instructed pursuant statute even aggravating circumstances present death penalty need imposed jury found mitigating circumstances emphasis added recognized respondent jury may well assumed statutory aggravating circumstances deserve special weight injustice today decision becomes apparent georgia capital sentencing procedure sentencer always discretion impose death sentence regardless whether proof one statutory aggravating circumstances regardless whether mitigating circumstances simply way know whether jury sentenced respondent death unconstitutional statutory aggravating circumstance included judge charge important state authorize prosecution request submission particular statutory aggravating circumstance jury must assume cases circumstance decisive jury choice life sentence death sentence gardner florida opinion stevens justice stewart pointed similar case georgia capital punishment scheme trial judge jury know determine upon appellate review concluded particular aggravating circumstance considered sentencing defendant death drake zant dissenting denial certiorari emphasis added although labors mightily effort demonstrate submission unconstitutional statutory aggravating circumstance affect jury verdict escape conclusion reached justice powell last term respondent sentenced death instructions misled jury zant stephens powell dissenting man life stake inconvenient fact simply swept rug read opinion deny respondent might received life sentence unconstitutional aggravating circumstance submitted jury rather assumes instruction induce jury place greater emphasis upon respondent prior criminal record otherwise done ante concludes however submission unconstitutional statutory factor amount constitutional defect sentencing process ante jury properly instructed decide whether either two statutory factors applied told addition deciding whether death sentence appropriate may consider remainder defendant prior criminal record ante finds constitutional difference charge charge actually given even assuming proper sustain death sentence reference hypothetical instruction might given errs assuming hypothetical instruction satisfy constitution elaborated part ii decisions establish actual determination whether defendant shall live die merely threshold decision whether eligible death sentence must guided clear objective standards focus sentencer attention must directed specific factors whose existence nonexistence determined reasonable certainty since hypothetical instruction fail channel sentencer discretion fashion assumption constitutional unwarranted iv foregoing reasons vacate respondent death sentence although asserts georgia unambiguously advised us finding one statutory aggravating circumstances merely performs function narrowing category persons convicted murder eligible death penalty serves function ante georgia answer certified question fact far clear answer threshold passed regardless number statutory aggravating circumstances found long least one thereafter sentencer may consider facts circumstances case say aggravating circumstances statutory nonstatutory may considered one statutory circumstance found say finding aggravating circumstance play role guiding sentencing body exercise discretion apart function narrowing class persons convicted murder eligible death penalty ante emphasis added nothing georgia opinion suggest jurors give special attention statutory aggravating circumstances throughout deliberations rather simply making threshold determination whether circumstances apply nonetheless purposes opinion assume majority correctly characterized georgia explanation georgia capital sentencing procedure justice brennan two members furman majority concluded death penalty circumstances cruel unusual punishment brennan concurring marshall concurring see gregg georgia white joined burger rehnquist concurring judgment georgia legislature made effort identify aggravating factors considers necessary relevant question whether defendant convicted capital murder sentenced death emphasis added omitted proffitt florida opinion stewart powell stevens jj sentencing authority florida trial judge directed weigh eight aggravating factors seven mitigating factors determine whether death penalty shall imposed white joined burger rehnquist concurring judgment although statutory aggravating mitigating circumstances susceptible mechanical application means vague overbroad leave discretion sentencing authority unfettered jurek texas opinion stewart powell stevens jj appears texas procedure guides focuses jury objective consideration particularized circumstances individual offense individual offender impose sentence death white joined burger rehnquist concurring judgment texas capital punishment statute limits imposition death penalty narrowly defined group brutal crimes aims limiting imposition similar offenses occurring similar circumstances remains true whether aggravating factor satisfies requirement genuinely narrow class persons eligible death penalty reasonably justify imposition severe sentence defendant compared others found guilty murder ante repeatedly recognized capital sentencing statute satisfy constitution simply requires bifurcated trial permits presentation penalty phase evidence concerning circumstances crime defendant background history factors aggravation mitigation punishment delgado connecticut summarily see gen moore illinois see rev ch scoleri pennsylvania summarily see stat tit although creation separate sentencing proceeding permits exclusion guilt phase information relevant sentencing might prejudice determination guilt merely bifurcating trial obviously nothing guide discretion sentencer see gregg georgia opinion stewart powell stevens mandatory appellate review substitute legislatively defined criteria guide jury imposing sentence ante although appellate review may serve reduce arbitrariness caprice sentencing authority required specify factors relied upon reaching decision gregg georgia supra opinion stewart powell stevens jj appellate review serve function statutory aggravating circumstances play threshold role appellate therefore means ascertaining factors underlying jury ultimate sentencing decision instructions given case set forth opinion last term certifying question georgia see zant stephens instructions given gregg quoted justice white opinion concurring judgment case see although justice powell stated dissent leave georgia decide whether authority find instruction harmless error beyond reasonable doubt per curiam opinion rejected approach asked georgia clarify premises underlying decision sustain respondent death sentence georgia asked conduct conduct review evidence determine whether instruction harmless error beyond reasonable doubt even hypothetical instruction permissible follow constitutional defect instructions given case nothing particularly vague phrase prior criminal record reasonably clear juror ordinary intelligence defendant prior criminal record consists past convictions contrast common ground case statutory aggravating circumstances substantial history serious assaultive criminal convictions vague two juries expected agree whether particular defendant history one thing bring jury attention readily identifiable factor defendant prior criminal record leave jury decide weight factor receive quite another thing ask jury determine applicability statutory factor group individuals ordinary intelligence expected apply objective way issue resolved defendant take factor account imposing sentence instructions invite exercise discretion weight given statutory factor instruction given vice requiring arbitrary determination made haphazard way jurors asked flip coin weigh result sentencing decision even hypothetical charge cited proper charge given case still impermissible injected arbitrary determination sentencing process